Punjab-Haryana High Court
Ankit Kumar Son Of Balinder Singh vs State Of Punjab on 21 December, 2013
Author: Fateh Deep Singh
Bench: Hemant Gupta, Fateh Deep Singh
CRA No.D-1097-DB of 2009 & 1
CRA No. D-21-DB of 2010
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Date of decision: December 21, 2013
Criminal Appeal No.D-1097-DB of 2009
Ankit Kumar son of Balinder Singh ....Appellant
Versus
State of Punjab ....Respondent
Criminal Appeal No.D-21-DB of 2010
Sachin Sharma son of Suresh Chand ....Appellant
Versus
State of Punjab ....Respondent
Coram: Hon'ble Mr. Justice Hemant Gupta
Hon'ble Mr. Justice Fateh Deep Singh
Present: Mr. Vipul Jindal, Advocate for the appellant
(In CRA No. D-1097-DB of 2009)
Mr. Vipul Jindal, Legal Aid Counsel for the appellant
(In CRA No. D-21-DB of 2010)
Mr. Pavit Mattewal, Additional Advocate General, Punjab
Fateh Deep Singh, J.
Since both these appeals are an outcome of same judgment and order of sentence dated 12.11.2009 of the Court of learned Special Judge, Patiala pertaining to case registered by way of FIR No. 104 dated 6.7.2008 under Section 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act) of Police Station Julkan are being disposed of by this common Kumar Vimal 2013.12.21 17:14 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1097-DB of 2009 & 2 CRA No. D-21-DB of 2010 judgment. Both the convict appellants after having found guilty of commission of offence under Section 15 of the Act were sentenced as follows:-
"To undergo rigorous imprisonment for a period of twelve years and to pay a fine of Rupees One Lakh, in default of payment of fine to further undergo RI for a period of one year."
As the story of the prosecution goes on 6.7.2008, police from CIA Staff Patiala headed by ASI Harbinder Singh PW5 while present at Pul Tangri in the revenue estate of village Aaujan for checking bad elements as well as patrolling duty were given instructions by Inspector Jassa Singh PW2 after he received secret information. On the basis of this information, a naka was laid on the Patiala Pehowa road at the Markanda bridge. At about 5.30 PM, a white coloured car make Accent bearing registration No. UP-11-J-6745 (in short, the Car) came from the side of Pehowa in which two persons were sitting. On signal, the persons tried to escape but were apprehended. The driver of the car disclosed his name as Sachin Sharma and the person sitting next to his seat revealed his name as Ankit Kumar, both present appellants. Meanwhile, on request, DSP Devinder Singh PW7 arrived at the spot who revealed his identity to both the accused and his status of being a Gazetted Officer. The police showed its resolve to search the car as they were suspicious that some contraband was being ferried. The accused were apprised of their rights under the law and their option of search either before the presence of a Gazetted Officer or a Magistrate was sought. Accused Ankit Kumar gave his consent Ex. PC and Sachin Sharma Ex. PD whereby they reposed confidence in DSP Devinder Singh.
On the instructions of PW7, PW5 conducted search of the car from which five Jute Bags each containing poppy husk were recovered. As per the requirement, from each of the Jute Bags, two samples each of 100 grams were Kumar Vimal 2013.12.21 17:14 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1097-DB of 2009 & 3 CRA No. D-21-DB of 2010 separately and individually drawn and prepared into separate parcels and were numbered and sealed with seal of the Investigating Officer bearing impression 'HS' and of the DSP bearing seal impression 'DS'. Sample seal impressions were also prepared. On being weighed, each of the residual Jute Bags was found to contain 39.800 kilograms poppy husk. The same were prepared into separate parcels with the same very seals and were taken into police possession through memo Ex. PE. All these proceedings were conducted in the presence of independent witness Sahib Singh who was handed over seal of the Investigating Officer. The car was taken into police possession through memo Ex. PF. Finding that the accused were not having any licence or authorization to carry this contraband, a ruqa Ex. PG was prepared and sent to police station leading to the registration of the FIR Ex. PA by ASI Gurpal Singh PW1.
The accused were served with formal memos Ex. PH/1 and PJ/1. After recording statements of the witnesses, rough site plan of the place of the recovery Ex. PK was prepared and report under Section 57 of the Act Ex. PL was sent to the concerned quarter.
On the same very day, the accused and the articles were produced before SHO SI Gurpal Singh PW1 who after due verification affixed his seal bearing impression 'GS' on each of the articles.
On 7.7.2008, the accused and the articles were produced by the Investigating Officer before the Illaqa Magistrate before whom application Ex. PM was moved and proceedings under Section 52-A of the Act by way of Ex. PM/1 were conducted on which orders Ex. PM/2 were passed by the Magistrate.
The articles were kept in the Judicial Malkhana except parcels which were to be dispatched to the Laboratory. During the course of events, the contraband parcels were handled by MHC Lakhbir Singh PW3 and C. Devinder Singh PW8. On receipt of report of Analysis Ex. PP opining the contents to be Kumar Vimal 2013.12.21 17:14 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1097-DB of 2009 & 4 CRA No. D-21-DB of 2010 poppy husk and after investigation, challan was presented. On usual formalities after framing charge the accused stood for trial.
The prosecution to establish its case against both the accused examined 10 witnesses including attesting witness ASI Gurcharan Singh PW4, HC Sunil Kumar PW6, Jagdev Singh PW9 and HC Bakshish Singh PW10.
The accused in their statements taken under Section 313 of the Code of Criminal Procedure denied the allegations taking the plea of false implication. Accused Ankit Kumar has taken the plea that he was National and International Wrestling Player and was Constable of Uttrakhand Police, has been falsely implicated as he has taken the lift whereas the other accused claimed that he had altercation with the police who has implanted the recovery. Thus, both the accused denied the allegations.
The accused in their defence, examined DW1 Atul Choudhary, Inspector Uttar Pradesh to prove that Ankit Kumar was a known wrestler representing the country. Similarly, DW2 Vikrant another International Wrestler has sought to lead credence to the antecedents of Ankit Kumar and to the same effect the deposition of DW3 Hawa Singh another National Player of wrestling. DW4 Parveen and DW5 Yashveer Singh have similarly brought about the innocence of accused Ankit Kumar. DW6 HC Balwinder Singh has proved DDR entry DW6/A. DW7 HC Balwinder Singh has proved log book of vehicle No.PB-11-R-7938 by way of Ex.PW7/A. DW8 HC Budh Gir brought on record copy of FIR Ex.DW8/A. Yadwinder Singh DW9 has proved that at the relevant time accused was attending camp for National games. Daruv Singh DW10 has sought to prove on the record the mobile tower location of the DSP by means of Ex. DW10/A, DW10/B and DW10/C and lastly DW11 Som Pal Goswami has sought to highlight that there was no relationship between the two accused and after tendering FIR mark DS, the accused closed their defence. Kumar Vimal 2013.12.21 17:14 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1097-DB of 2009 & 5 CRA No. D-21-DB of 2010 It is subsequent thereto that the impugned findings were recorded and that is how the appellants are before this Court.
After hearing at length Shri Vipul Jindal, Advocate for the appellants and Shri Pavit Mattewal, Additional Advocate General, Punjab for the State. The first and foremost point raised by the learned counsel for the appellants is to the effect that there has been utter violation of the provisions of Section 42 of the Act and trying to impress the Court that the provisions of Section 42(2) of the Act is mandatory and in this case, the police has failed to take down in writing the prior information so received by it and therefore, goes to the roots of the prosecution story which needs to be out rightly rejected. Shri Pavit Mattewal has sought to impress upon the Court that it was recovery on the basis of secret information received by a senior officer and that the conveyance was in transit in a public place, therefore, the provisions of Section 42(2) of the Act are not applicable in the facts of the present case.
As per the prosecution story when the Investigating Officer was holding a naka, instructions were received from Inspector Jassa Singh his immediate officer superior regarding receipt of secret information and to act on the same. It on such basis, Investigating Officer Harbinder Singh has laid naka on the Patiala Pehowa road when Accent car was seen coming and after it was signaled when the driver tried to sped away. The vehicle was apprehended leading to the recovery of the contraband as detailed earlier.
The law in its wisdom has enacted certain safeguards to rule out false implication of innocent persons and to prevent misuse of the provisions. Section 42 of the Act has been enacted with this motive in mind in respect of search and seizures from any building, conveyance or enclosed place. It thus deals with private property of the person concerned to maintain his privacy. On the other hand, Section 43 deals with search and seizures operations from a Kumar Vimal 2013.12.21 17:14 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1097-DB of 2009 & 6 CRA No. D-21-DB of 2010 public place. Section 49 of the Act further provides that an empowered officer, if he has reason to suspect that any conveyance is or is about to be used for the transport of any narcotic drug or psychotropic substance or controlled substance, stop such conveyance. If necessary, he has been empowered to fire upon to stop the conveyance. The relevant Sections read as under:-
"42. Power of entry, search, seizure and arrest without warrant or authorisation -(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V A of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act.
Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the Kumar Vimal concealment of evidence or facility for the escape of an offender, he may enter 2013.12.21 17:14 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1097-DB of 2009 & 7 CRA No. D-21-DB of 2010 and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-Section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior;
43. Power of seizure and arrest in public place- Any officer of any of the departments mentioned in Section 42 may-
(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.
xxx xxx xxx
49. Power of stop and search conveyance - Any officer authorized under section 42, may, if he has reason to suspect that any animal or conveyance is, or is about to be, used for the transport of any narcotic drug or psychotropic substance, or controlled substance, in respect of which he suspects that any provision of this Act has been, or is being, or is about to be, contravened at any time, stop such animal or conveyance, or, in the case of an aircraft, compel it to land and -
(a) rummage and search the conveyance or part thereof;
(b) examine and search any goods on the animal or in the conveyance;
(c) if it becomes necessary to stop the animal or the conveyance, he may use all lawful means for stopping it, and where such means fail, the animal or the conveyance may be fired upon." (Emphasis supplied) A reading of Section 42 of the Act shows that the requirement to take down the secret information in writing and sending to superior officers Kumar Vimal prior to search is in respect of recoveries made from a private place such as 2013.12.21 17:14 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1097-DB of 2009 & 8 CRA No. D-21-DB of 2010 building, conveyance or enclosed place. There is no requirement to record such information in writing in respect of search and arrest in a public place or in transit. The expression 'transit' in Section 43 of the Act is applicable to the expression 'conveyance' used in Section 42 of the Act as well, which is evident from the provisions of Section 49 of the Act, which authorizes an empowered officer to stop any conveyance, if the officer is suspecting that such conveyance is carrying narcotic drug or psychotropic substance or controlled substance. Thus Sections 43 & 49 of the Act, in respect of conveyance, creates an exception to carry out the search and seizure operations in respect of a vehicle in motion. The Supreme Court in State of Haryana versus Jarnail Singh, (2004) 5 SCC 188, while considering search of a tanker moving on a public highway, found that Section 43 is applicable to the case in question. It was observed as under:-
"8. Section 43 of the NDPS Act provides that any officer of any of the Departments mentioned in Section 42 may seize in any public place or in transit any narcotic drug or psychotropic substance, etc. in respect of which he has reason to believe that an offence punishable under the Act has been committed. He is also authorised to detain and search any person whom he has reason to believe to have committed an offence punishable under the Act. V cExplanation to Section 43 lays down that for the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
9. Sections 42 and 43, therefore, contemplate two different situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and sunrise.
10. In the instant case, there is no dispute that the tanker was moving on the public highway when it was stopped and searched. Section 43 therefore clearly applied to the facts of this case. Such being the factual position there was no Kumar Vimal 2013.12.21 17:14 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1097-DB of 2009 & 9 CRA No. D-21-DB of 2010 requirement of the officer conducting the search to record the grounds of his belief as contemplated by the proviso to Section 42..............."
Such view was reiterated by the Court in a later judgment reported as Union of India versus Major Singh & others (2006) 9 SCC 170, wherein the court observed as under:-
"3. The High Court has recorded the acquittal on two counts; firstly, the provisions of Section 50 of the Act and secondly, under Section 42(2) of the Act have not been complied with. So far as Section 50 of the Act is concerned, in the present case, the same shall have no application as the search and seizure was made from a truck and not from the person of any of the accused persons. This question has been examined by a three-Judge Bench of this Court in State of H.P. v. Pawan Kumar (2005) 4 SCC 350 in which it has been categorically laid down that search of a bag, briefcase or any such article or container which is being carried by a person is not search of a person, as such the provisions of Section 50 of the Act would not apply in case search and seizure is not made from the person of the accused. In the present case, as the search and seizure have not been made from the person of the accused but from the truck, the provisions of Section 50 of the Act shall have no application.
4. Turning now to Section 42(2) of the Act, in this regard, it may be stated that from the prosecution case and evidence it would be clear that the search and seizure was made of a public carrier at a public place and 127 bags of poppy straw (opium) were seized from a public carrier. This point is also concluded by a judgment of this Court in State of Haryana v. Jarnail Singh (2004) 5 SCC 188 in which it has been categorically laid down that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 for searching the vehicle between sunset and sunrise. In the case in hand the search was made of a public conveyance at a public place between sunrise and sunset. Therefore, the provisions of Section 42(2) of the Act shall have no application to the case. This being the position, the High Court was not justified in acquitting the respondents and the trial court was quite justified in convicting them."
Thus, we find that the provisions of Sections 42, 43 & 49 of the Act are to be read conjointly. The harmonious construction of the provisions of the Act makes it clear that the empowered officer is competent to search a conveyance in transit in a public place and that it is not necessary to record Kumar Vimal 2013.12.21 17:14 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1097-DB of 2009 & 10 CRA No. D-21-DB of 2010 secret information in writing and to communicate the same to the Superior Officer. The provisions of Sections 42 and 43 of the Act show the intention of the Legislature is different in respect of each of the two provisions as is revealed from the language of these Sections. Section 43 authorizes any officer of the department mentioned in Section 42 for search, seizure, arrest or detention in any public place or in transit in respect of any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance or article is liable to be confiscated under the Act, or any document or other article which he has reason to believe may furnish evidence of the commission of an offence under this Chapter relating to such drug or substance whereas Section 42 speaks about search and seizure from any building, conveyance or in the case of private/personal place The very wording of Section 42 in regard to information to be taken down in writing has been intentionally omitted in the wording of Section 43 purportedly and deliberately so advisedly in as much as the police officer in Section 42 may get information with regard to the person in any public place or in transit at the best moment and if he has to undergo procedure of taking that information into writing and recording the reasons for his belief, possibly such information may not be useful. More so in the prevalent situation of fast transmission of information by use of modern electronic equipments certainly would add to the woes of the Investigating Officer if he is made to tredge such an arduous procedure. Therefore, we find that an empowered person while acting under Section 43 of the Act need not record any reason of his belief as is required under Section 42(2) of the Act.
The judgments referred to by the learned counsel for the appellants in State of Karnataka versus Dondusa Namasa Baddi, 2010(12) SCC 495; Kumar Vimal 2013.12.21 17:14 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1097-DB of 2009 & 11 CRA No. D-21-DB of 2010 Directorate of Revenue & Anr. Versus Mohammed Nisar Holia, 2008(1) R.C.R. (Criminal) 241; Kishan Chand versus State of Haryana, 2013 (2) SCC 502; Rajender Singh versus State of Haryana (SC), Criminal Appeal No. 1051 of 2009 decided on 8.8.2011 and Man Singh @ Mana and another versus State of Haryana (P&H), CRA-D-495-DB of 2005 decided on 01.11.2011 do not advance the argument raised, as such judgments pertain to Section 42(2) of the Act in respect of recovery from person of the accused. In Directorate of Revenue & Anr. Versus Mohammed Nisar Holia, (2008) 2 SCC 370, relied upon by the counsel for the appellants, the Supreme Court has held that Section 43 is an exception to Section 42 of the Act. Similar is the view of the Supreme Court in State of Punjab versus Baldev Singh, AIR 1999 SC 2378 and State of Punjab versus Balbir Singh, (1994) 3 SCC 299.
The mere arguments that the recovery memo has not been signed by the accused does not impress the Court much as there is nothing in law that a recovery memo is mandatorily required to be signed by the accused especially when the same has been signed by witnesses of whom one is an independent witness and the other is a senior Gazetted Officer, therefore, has not much affect and the ratio cited in Girdhari versus State (NCT of Delhi), 2012 (1) R.C.R. (Criminal) 951 is factually not applicable to the case in hand. Even otherwise in the case of M. Prabulal versus Asstt. Director, Directorate of Revenue Intelligence (2003) 8 SCC 449 the Hon'ble Supreme Court has even gone to the extent holding that where a search is effected by a Gazetted Officer himself acting even under section 41 of the Act it was not necessary to comply even with the requirements of section 42 of the Act. Even in this case on the orders and in the presence of the Gazetted Officer search of the vehicle has been effected. The argument that FIR number is depicted on the memos has not much significance as after the receipt of the FIR usually the Investigating Officer Kumar Vimal 2013.12.21 17:14 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1097-DB of 2009 & 12 CRA No. D-21-DB of 2010 writes it over all the documents prepared so as to keep tag of the same. In the absence of FIR number on the documents prepared by the police, there is great danger of misuse of such documents. More so, the learned counsel for the appellants could not show by any means what prejudice has been caused to the defence.
The next rallying issue revolves around the factum of conscious possession of the contraband. Though the learned appellants' counsel has sought to bring about that the car was being driven by accused Sachin Sharma and as per the defence of accused Ankit Kumar, he has taken the lift for which reliance has sought to be placed on Babu Singh versus State of Punjab (P&H), CRA No. 2401-SB of 2004 decided on 18.10.2012; Sarobkhan Gandhkhan Pathan and another versus State of Gujarat 2004 (13) SCC 608 and Bal Krishan and others versus The State of Punjab (P&H), Criminal Appeal No.433-DB of 2004 decided on 23.3.2010. In Babu Singh's case (supra), the person was only found sitting on the gunny bags. In Sarobkhan Gandhkhan Pathan and another's case (supra), the recovery was made from the person of the person of the accused for which there has been non-compliance of Section 50 of the Act and in Bal Krishan's case (supra), the accused was found to be carrying gunny bag on his lap while sitting in a rickshaw. The rickshaw puller had taken this plea of lack of conscious possession. However, in the present case, the fact proved on record from the prosecution witnesses is that the accused tried to fled away with the car shows guilty mind. In this case one of the accused is an official of the police department claiming to be Wrestler of International and National fame hailing from Uttrakhand and has not been able to give any satisfactory explanation how he was in the car and that too with his co-accused Sachin Sharma when both the accused are of places near to each other being Saharanpur and Haridwar and when the car was apprehended in Kumar Vimal 2013.12.21 17:14 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1097-DB of 2009 & 13 CRA No. D-21-DB of 2010 Haryana near Shahabad. Though DW1 Atul Chowdhary, DW2 Vikrant, DW3 Hawa Singh, DW4 Parveen, DW5 Yashveer Singh and DW9 Yadwinder Singh claimed that accused Ankit Kumar was supposed to undergo training at NIS, Patiala but nothing by way of documentary evidence comprising of invitation to attend the game or any such attendance from any official record is adduced on the record. Testimonies of DW6 HC Balwinder Singh, DW7 HC Balwinder Singh and DW8 HC Budh Gir have not much relevance to establish this plea of alibi so sought to be raised by the appellants. The mere claim of the appellant that he was not present or that he has been falsely implicated is not made out. Since this plea of alibi has been taken in terms of Section 103 of the Act, the onus lay heavily on the accused to prove this. More so evidence of the prosecution brought about by ASI Harbinder Singh, ASI Gurcharan Singh, Inspector Jassa Singh and DSP Devinder Singh clearly establishes the recovery of the contraband from the car which has been taken into police possession along with its RC Ex. PO through memo Ex. PF. Counsel for the appellants could not convince the Court with any material that has come in cross- examination of PWs which could dent the prosecution story. Having proved its case against both the accused as to the recovery of the contraband poppy husk, which is not an insignificant recovery but huge quantity weighing 200 kilograms. Moreover five Gunny Bags are dominantly visible to a person in the car and thus plea of ignorance of this is unsustainable. Presumption needs to be drawn in terms of Section 54 of the Act that the accused have committed this offence as they have miserably failed to account for this recovery. It is for the defence to establish to the satisfaction of the Court that they have no knowledge or were not aware of the contents of these bags from which the poppy husk has been recovered. Hon'ble the Supreme Court in the case of Madan Lal and Anr. Versus State of Himachal Pradesh, (2003)7 SCC 465 has laid down Kumar Vimal 2013.12.21 17:14 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1097-DB of 2009 & 14 CRA No. D-21-DB of 2010 that where a recovery has been made from a car all persons travelling in it are deemed to be in conscious possession of the contraband and the onus is on the accused that he was not in conscious possession. It was further elaborated that possession need not be physical one and can even be a constructive possession. It was also held that the provisions of Section 50 of the Act are not applicable to recoveries made from a vehicle. In this case as has been argued by Shri Pavit Mattewal, the defence has totally failed to give any explanation for this recovery from the vehicle in which they were travelling.
It has been vehemently stressed by Shri Vipul Jindal that mere suspicion cannot take place of proof by citing Anil S/o Shamrao Sute & Anr. Versus State of Maharashtra, 2013(2) R.C.R. (Criminal) 541 to the effect that the seal has remained with the Investigating Officer by placing reliance on Radhey Sham versus State of Haryana, 2011 (2) R.C.R. (Criminal) 90 and that the residual parcels of the contraband has not been proved at the trial and further the samples have not remained intact are submissions which are clearly off the tangent. The provisions of Section 52-A of the Act have been specially enacted whereby under sub Section 4, explanation has been made to the provisions of Indian Evidence Act as well as Criminal Procedure Code by virtue of any inventory, photograph or list of samples drawn under the provisions of Section 52 of the Act which are certified by the Magistrate are primary evidence in such cases. Reverting back to the instant case it is duly established that through Ex. PM, Ex. PM/1 and Ex. PM/2 that the case property was produced before the learned Magistrate and after due procedure having been adopted, the learned Magistrate had passed orders for depositing the case property in Judicial Malkhana and has issued certificate regarding correctness of the inventory, therefore, blunts this argument of the defence. It is well elicited in the testimony of the Investigating Officer PW5 that after use he has handed Kumar Vimal 2013.12.21 17:14 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1097-DB of 2009 & 15 CRA No. D-21-DB of 2010 over his seal to Sahib Singh an independent witness and DSP retained his own seal. Further more Inspector Jassa Singh PW2 had categorized that after the articles and the accused were produced before him, he verified the facts and put his seal impression 'JS'. All these articles and the seal impression Ex.P1 have been proved and therefore, is due compliance of the provisions of Section 52A(2) of the Act for which no benefit can be drawn by the defence. The SHO has ensured that the articles are produced before the Court and as per the orders of the learned Magistrate PM/2, he has found the seals in an intact condition and furthermore the deposition of PW3 by way of Ex. PB, PW8 Ex. PM clearly depict that the sample parcels reached the Laboratory in an intact condition and the Laboratory report Ex. PP further corroborates this fact. Though not argued, PW9 Jagdev Singh from the office of RTO, Saharanpur has proved ownership of the car in the name of Aman Sharma son of Suresh Chand Sharma, resident of Saharanpur which particulars are akin to that of accused no. 2 invariably in the name of his brother who has not denied this fact and the registration certificate Ex. PO further establishes this fact are matters which have its own bearing on the case of the defence. The feverish submission that Form-29M has not been filled for which attention of the Court has been drawn to the cross-examination of DSP Devinder Singh to the effect that he does not remember if any CFL form was prepared at the spot or not. Obviously, the defence has lost sight of the fact that it is on the basis of this form which may be in a printed form or handwriting that sample parcels of the contraband poppy husk are forwarded to the Laboratory and it is well proved on the record by way of Ex.PP. It is also countersigned by SHO, SSP and office of the Chemical Examiner had given a note to this effect at the time of receiving these samples by virtue of which Meconic Acid and Morphine have been found to be present and it has been opined that the samples were of Chura poppy husk and therefore, ratios cited in Kumar Vimal 2013.12.21 17:14 I attest to the accuracy and integrity of this document Chandigarh CRA No.D-1097-DB of 2009 & 16 CRA No. D-21-DB of 2010 Rajiv Kumar alias Guglu versus State of H.P. (HP) Cr. A. No. 295 of 2004 decided on 2.11.2007; State of H.P. versus Gurmail Singh alias Bab, 2012(8) R.C.R. (Criminal) 1731 and Surjit Biswas versus State of Assam, 2013(3) R.C.R. (Criminal) 227 do not come to the aid of the appellants. There is no apparent prejudice having been caused to the accused. Not only there is due compliance of Section 57 of the Act as this report has been proved on the record as Ex. PL and even otherwise is only a precautionary measure not mandatory and when the recovery has been effected in the very presence of the immediate Officer superior i.e. the DSP PW7 and the naka has been held as per directions of Inspector Jassa Singh, Incharge of CIA Staff, Officer superior to that of the Investigating Officer who is from CIA staff, to the mind of this Court is a sufficient compliance of this.
The prosecution through the material witnesses have irrefutably established the recovery of this contraband from the conscious possession of both the accused which the learned trial court has rightly appreciated in the correct perspective, thus, does not calls for any interference by this Court. Finding both the appeals to be without any merit, the same stand dismissed.
(Hemant Gupta)
Judge
(Fateh Deep Singh)
December 21, 2013 Judge
'tiwana'/Vimal
Kumar Vimal
2013.12.21 17:14
I attest to the accuracy and
integrity of this document
Chandigarh